1969 P Cr (PLP)

KHAMISANI, J.‑--The appellants Ikram, Siddiq Teli, Hassan Muhammad, Bashir, Ishaq and Bagh Ali have been convicted under sections 302, 326 and 324 all read with section 149, P. P. C., and sentenced to death and fine of Rs. 50J in default rigorous imprisonment for two years, rigorous imprisonment for two years and fine of Rs. 200 or in default rigorous imprisonment for six months and rigorous imprisonment for one year each respectively. Khurshid, Shah Muhammad, Yousuf, Ibrahim, Hussain, Amir Bux and Sadiq Arain who had been tried along with the appellants have been acquitted. The appellants have filed this appeal. The matter is also before us for confirmation of the sentence of death passed on the appellants. We shall dispose of both the appeals filed by the appellants and the murder reference under this judgment.

2. The facts of the prosecution case briefly are that Darhoon P. W. 11 had purchased mutton worth about Rs. 4 from appellant Ikram about two months before this incident. It is said that appellant Ikram had asked Darhoon several times before this incident for the return of Rs. 4 but Darhoon put him off on one pretext or the other. On the 4th October 1963, appellant Ikram went to Wadero Behram and complained to him against Darhoon for his dilatory tactics in making the payment of Rs.4. lkram also requested Wadero Behram to intervene and get him Rs. 4 from Darhoon. Wadero Behram consequently sent Muhammad P. W. 10 along with Ikram to Darhoon to get Ikram his Rs.

4. Muhammad and lkram went to Darhoon and told him to pay Rs.

4. Darhoon however told them that there was no money with him at that time and that he would make the payment in a day or two. The appellant Ikram insisted on receiving his Rs. 4 at that very time. On Darhoon not being able to pay Rs. 4 at that time, Ikram abused him. Darhoon also returned abuses with the result that Ikram slapped Darhoon and both then grappled with each other. Muhammad and others who were present, intervened and separated them. Ikram then left the place after giving threats to Darhoon that he would take revenge from him. Shortly thereafter Ikram with five other appellants and seven acquitted accused came to the place where Dahroon was sitting, differently armed and gave blows to him. Ali Bux, Bangul, Wazir, Kadir Bux, Darhoon Muhammad Amin, Qaim, Mithal, Muhammad Parial and Abdullah, who intervened also sustained injuries. Ali Bux, Bangul, Wazir and Kadir Bux died on the spot. All the appellants except appellant Ikram also received injuries. The appellants and other acquitted accused after causing injuries ran away. Muhammad then informed Ghulam Rasool who informed Police Constable Abdul Aziz P. W. 8 about what had happened. Abdul Aziz then sent a phone message to Head Constable Jamal Shah through Phone Clerk Ghulam Rasool which was recorded and transmitted to the police at Mirwah. This phone message was recorded on chit Exh. 113 at 5‑30 p.m. It was thereafter registered by Jamal Shah Head Constable P. W. 20 on behalf of the State at Mirwah Police Station. The phone message reads as under:‑ "One Ghulam Rasool Chakrani has informed me that Punjabies have murdered 3 persons Chakrani of my village and further 3‑4 persons are injured. Wardat is at Chakrani village. Kindly reach the place of occurrence."

3. The police during the course of investigation visited the place of vardat and prepared its mashirnama. They also recorded the statements of the witnesses. The injured witnesses, the injured accused and deceased were sent for medical examination. The appellant:? Siddiq Teli, Hassan Muhammad, Bagh Ali and Ishaq were arrested on 5th October 1963, the incident having occurred on 4th October 1963 at 3 p.m. Siddiq Teli made a statement under section 27 of the Evidence Act pursuant to which a Ramba was produced by him which was secured under mashirnama Exh.

15. Appellant Hassan Muhammad also made a statement under section 27 of the Evidence Act which led to the discovery of broken blade of the spear which was secured under mashirnama Exh.

16. The appellant Bagh also produced a Ramba after making a statement under section 27 of the Evidence Act which was secured under mashirnama Exh.

17. The appellant Ishaq also produced an iron‑plated lathi pursuant to the statement made by him under section 27 of the Evidence Act which was secured under mashir nama Exh.

20. The appellant Ikram was arrested on 6th October 1963. He also made a statement on the day lie was arrested under section 27 of the Evidence Act on account of which a spear was recovered tinder mashirnama Exh.

19. The mashir for all these recoveries was Ghulam Shabbir P. W. 5 and the police officer who made these recoveries was Jamal Shah Head Constable. The Chemical Analyser's report disclosed that there was no blood on any of the weapons allegedly secured from the accused. All the appellants except Ikram had also made extra‑judicial confession before Atta Muhammad P. W.

19. The judicial confession of appellant Ikram Exh. 8 was recorded by Mr. Ali Muhammad P. W. 1, Mukhtiarkar and F. C. M. Mirwah, on 7th October 1963, he having been arrested on 6th October 1963. After the usual investigation was concluded, the appellants and the acquitted accused were challaned.

4. The appellants, when questioned, denied the allegations made against them and stated that the case against them had been filed on account of enmity. They have examined no witness in defence.

5. The question whether Ali Bux, Bangul, Wazir and Kadir Bux sustained injuries and died on account of them is not disputed. The question also whether Darhoon, Muhammad Amin, Qaim, Mithal, Muhammad Parial and Abdullah sustained injuries is also not disputed. The evidence of Dr. Amarlal Exh. 21 has also established that the injuries on the persons of Ali Bux, Bangul, Wazir and Kadir Bux were ante‑mortem and sufficient in the ordinary course of nature to cause death. He has also established that there were injuries on the persons of Darhoon, Muhammad Amin, Qaim, Mithal, Muhammad Parial and Abdullah. The only question, therefore, that needs to be decided in this appeal is whether the appellants caused injuries to the deceased and to the injured witnesses. The prosecution have examined for the purpose of establishing their case Muhammad P. W. 10, Darhoon P. W. 11, Muhammad Amin, P. W. 12, Qaim P. W. 14, Mithal P. W. 15, Muhammad Parial P. W. 16 and Abdullah P. W.

17. Out of these witnesses, Darhoon, Muhammad Amin, Qaim, Mithal, Muhammad Parial and Abdullah are injured witnesses. Muhammad P. W. 10 is com pletely a disinterested witness. The evidence of Muhammad is to the effect that appellant Ikram approached Wadero Behram to intervene and to get him Rs. 4 from Darho, n, on account of which Behram sent him along with Ikram to Darhoon to get him Rs. 4 from him. He has further stand that Darhoon told Ikram that he had no money on his person at that time but that he would pay him in a day or two on which Wain insisted on receiving his money at that very time and also abused and slapped him. He has further stated that Darhoon also returned abuses on account of which Ikram and Darhoon grappled with each other and were thereafter separated by him and the persons present there. He has also stated that Ikram then left the place after meeting out threats to Darhoon that he would avenge his insult on him. He has also stated that shortly thereafter all the appellants and the seven acquitted accused came to the place of the incident and caused injuries to Dathoon and several other witnesses. He has further stated that All Bux, Bangul, Wazir and Kadir Bux died on account of the injuries sustained by them. The evidence of this witness has not been criticised on any count. Nothing has also cork cut in his cross‑examination to discredit his evidence. He has also been supported in his evidence by Wadero Behram P. W. 99 who was approached by the appellant Wain for Intervention and for getting him Rs. 4 from Darhoon. He has stated that Muhammad was sent by him with Ikram to Darhoon to get him Rs.4 from Darhoon. The evidence of Wadero Behram, therefore, leaves no room for doubt about the presence of Muhammad at the place of the incident. Once it is held that he was present at the place of the incident, it is difficult to discard his q evidence because of his disinterestedness. The evidence of this witness is word for word supported by Darhoon P. W. 11, Muhammad Amin P. W. 12, Qaim P. W. 14, Mithal P. W. 15, Muhammad Parial P. W. 16 and Abdullah P. W.

17. All these witnesses had received injuries. The question of their presence at the place of the incident cannot, therefore, be doubted. They have implicated all the appellants and the acquitted accused and have categorically stated that they actually participated in causing injuries. There is nothing on the record to discredit the evidence of these witnesses also. There is also nothing on the record to establish any kind of bias or previous enmity between the witnesses and the appellants. The evidence of these witnesses has also, not been criticised on any account except for the contradictions about who caused injuries to whom and with what weapons. These contradictions are natural in a case like this considering the number of persons who participated in the fight. The number of the injured persons on the side of the prosecution was six and four had died. The number of the injured persons on the side of the appellants was five. The number of persons alleged to have participated in the fight on behalf of the appellants was

13. The total number of persons, therefore, who took part on either side in the incident was about

25. In a crowd of 25 persons when blows were being showered it was difficult for anyone to know as to who caused injuries to whom and with what weapons. These contradictions, therefore, in our opinion, have no value whatever for the purpose of discrediting the evidence of the witnesses.

6. Apart from that the evidence of the witnesses also receives support from the fact that the appellants Siddiq Teli, Ishaq, Hassan Muhammad, Bashir and Bagh Ali had injuries on their persons. The appellants have falsely denied that there were no injuries on their persons or that they were not sent to any medical officer for treatment and examination because Dr. Amarlal P. W. 6 has in his evidence established that these appellants were sent to him for examination and treatment and that his examination disclosed that there were injuries on their persons. The false denial on their part about having been sent to the doctor would also give rise to an inference of their guilty conscience. So far as appellant Ikram is concerned, he made a judicial confession Exh. 8 on 7th October 1963, he having been arrested on 6th October 1963. The case of the appellant Ikram is not that he made this confession under coercion or under pressure from the police. His cast is only of denial. He has stated that he never made any confession. This statement of appellant 1kram is obviously false because Ali Muhammad C P. W. 1 has established that the appellant Ikram was produced before him and he made a confession which was recorded by him and which has been brought on record as Exh.

8. The confession having been recorded immediately after his arrest, appears definitely to be voluntary especially in view of the fact that the Magistrate had taken all the precautions required J under the law to ascertain that he made the confession voluntarily. The operative part of the confession made by Ikram also appears to be true because it gives all the details and receives support from other evidence brought on record. The confession made by him is reproduced as under :‑ "I and Ismail Teli sell meat. It is about 2 months that Darhoon Chakrani took meat worth Rs. 4 from us on loan, saying that he would matte payment within a day or two. I used to go to him frequently for recovering the debt, but he kept me on hopes. On 4th October 1963, I went to Wadero Behram Khan with whom were sitting Ghulam Rasool and Muhammad Chakrani. Bahram Khan asked Muhammad Chakrani to go with me to Darhoon and get me money from him. I then went to Darhoon in company of Muhammad Nawab, Gulan and Rustam were sitting with Darhoon at that time. Muhammad asked Darhoon that Behram had sent him to Darhoon so that Darhoon should make payment to Ikram, but Darhoon replied that he would pay money to Ikram on the next day. I then informed Darhoon that he should pay me the amount immediately as he is kept on hopes several times. Darhoon at that time abused me and then a fight took place. We slapped each other. I then went to my village and informed the villagers that Darhoon has insulted me and not made the payment. Let us go to take revenge from him. We then were 13 in number, viz. I, Baghali, Hassan Muhammad, Siddiq Teli, Ishaque Teli, Ibrahim Teli, Khurshid Rajput, Hussain Rajput, Shah Muhammad Rajput, Amir Bux Rajput, Bashir Rajput, Muhammad Siddiq and Yousuf Arain all went in a body to the house of Darhoon. I, Bagh Ali, Hassan Muhammad and Siddique Teli, had spears in our hands. All the others had lathis of bullock cart killas in their hands. When we went to the house of Darhoon, Amin, Gullan, Nawab, Rustam and Muhammad Chakrani were present there. As I went, I injured Amin with my spear. The other were attacked by my other partymen: about which I did not know the details. We then were going back, when Kadir Bux, Wazir, Bangul, Mitho, Paryo, Abdullah and Kaim met us. We fought with them near sugarcane cultivation. Kadir Bux, Bangul and Wazir were murdered in the fight. Ali Bux, Darhoon also died in the house during the fight. Mitho, Abdullah and Paryo also received injuries during the fight. We then went to our village. Police arrested us yesterday evening. After that myself, Baghali, Siddique Teli and Hassan Muhammad produced spears and lathis to the police from our houses with which we had quarrelled."

7. The evidence brought on record, therefore, has in our opinion conclusively established the offences with which the appellants were charged.

8. The learned counsel for the appellants also argued only on the question of sentence and submitted that the trial of the appellants up to this stage has taken about five years which by itself is sufficient for the purpose of reducing their sentence from death to transportation for life. We have considered his arguments and also the cases of Kamber Ali Shah v. The State (P L D 1959 Kar. 460) and Abdul Hamid v. State (P L D 1962 Quetta 111) and are of the view that the cases referred by him have no application to the facts of the present case. If the delay in the trial or in the final conclusion of the case has any part to play in the reduction of the sentence, it is for the Government to consider. But so far as the case on merits is concerned, this is one of those cases in which four persons have been ruthlessly murdered and six persons have been grievously injured on a motive which relates only to the recovery of Rs.

4. The conduct of the appellants and the confession of the appellant Ikram has indicated that they formed themselves into an unlawful assembly and decided upon killing Darhoon and any other person or causing injuries to anybody case who came in their way and prevented them from achieving their common object, merely because Darhoon could not pay back Rs. 4 on the day of the incident: We have considered all the aspects of the case and we are of the view that the only sentence which the appellants in this case richly deserved is the sentence of death. We consequently dismiss their appeal and confirm the sentence of death passed on them. The other sentences of imprisonment passed on them are also confirmed.

9. What needs to be mentioned in this case is that the learned Judge who tried this case has acquitted seven persons whose names have been mentioned above. The main grounds on which the learned Judge has acquitted these persons are (1) that the evidence of the witnesses in respect of Khurshid was not true because lie was not present at the place of the incident, (2) that there appear contradictions in the evidence of the witnesses and (3) that the evidence of the witnesses receives no corrobora tion in respect of these persons. All these grounds, in our opinion, are absolutely without any foundation. The question whether Khurshid was present at the place of the incident and participated in the commission of the offences has been established by the evidence of Muhammad and six other witnesses who unanimously state that Khurshid had participated in the commission of the offences. As we have said that the evidence of these witnesses is above board and has not been shaken so as to be discarded. The learned Judge, however, has placed reliance only upon Exh. 76/1 which is a copy of the diary of 4th October 1963 of a case then pending in the Court of the Sub‑Judge at Mirwah. It is true that this copy shows that Khurshid was one of the accused persons in that case and that he was present in the Court at Mirwah on the morning of 4th October 1963. But this diary merely mentions that the learned Judge had postponed the case because P. S. I. incharge of the case had not appeared. No evidence has come on record as to what time this case had been postponed. Even if it be assumed that this case was postponed late in the day the incident occurred at 3 p.m. and that the distance between the place of the incident and Mirwah was not so great that it could not be covered up by the accused Khurshid within that period to be present at the time and place of the incident. No evidence has been recorded even to prove Exh. 76/1 much less to prove the time at which the case was adjourned. Under these circum stances, reliance was wrongly placed by the learned Judge on Exh. 76/1 for the purpose of coming to the conclusion that accused Khurshid was not present at the time and place of the incident especially in view of the fact that there was positive evidence from several independent witnesses in support of the fact that accused Khurshid was present at the place of the incident. The contradictions which have influenced the learned Judge also, as we have pointed out above, are not material because they related only to who caused injuries to whom which as we have already said, were natural in the circumstances of this case. The corroboration which the learned Judge sought in the case of these acquitted accused was not necessary because the evidence of the witnesses was not tainted so as to require any corroboration. More than anything else what is fantastic is that even the judicial confession made by the acquitted accused Siddiq Arain has also been discarded because it appeared to be in consonance with the confession made by appellant Ikram. The regrettable part of the whole thing is that several people, in our opinion, who were guilty and who could have been punished have gone unpunished firstly because of the learned Judge's wrong appraisal of the evidence and secondly because the learned Public Prosecutor who was in charge of the case was negligent in his duty in not so much as even making a reference to the Additional Advocate‑General or to the Govern ment for filing an appeal against the acquittal. As the time for filing an appeal has already expired, we are helpless in the matter and can do nothing. Appeal dismissed.